Horah v. Horah, 60 N.C. 107, 1 Win. 107 (1864)

Dec. 1864 · Supreme Court of North Carolina

60 N.C. 107, 1 Win. 107

JOHN M. HORAH, Administrator, with the will annexed, of GEORGE HORAH vs. SOPHIA HORAH, WM. H. HORAH and others.

Tht personal representative has no right to ask the advice and direction of the Court in the. settlement of the estate of the. deceased; except as to matters in which he is interested as executor or administrator.

A legatee for life or years is not bound to give a bond .for .the benefit of ■ remaindermen, unless it is shown' that there is danger of fihe property being wasted or eloigned.

This cause was transferred to this Court for trial from the Court of Equity of Rowan county.

The bill was 'filed by the administrator, with the will annexed, of George Horah against the testator’s widow, and his brothers and sisters and the children of deceased brothers and sisters. It sets out a clause of the. testator’s will by which he gives his estate to his wife, the defendant, Sophia, for life, With remainder to the other defendants ; and the same clause provides that the defendant, James, shall have a certain house" and lot given,to the'defendant, Sophia, upon his, James, paying to her $4,000 : and the bill states that controversies have arisen among the defendants concerning the right of the defendant, Sophia, to receive the property given to her, without giving a bond with surety for the benefit of the re-maindermen ; and also concerning the right of the heirs of James (who is dead) to, have the lot on payment of the $4,000 ; and it is also a matter of controversy between the administrator of James and his heirs, which of them must pay the money. The .plaintiff asks the advice and direction of the Court concerning these several matters.

W. H. Bailey for the plaintiff.

Blachmer for the defendants.

Batsle, J.

This bill has .been filed, by the administrator, with the will annexed of the testator, against the devisees and legatees, to obtain the adviee and direction of the Court in relation to his duties in the settlement of the estate. ' .

It has been'repeatedly declared by the Court that, upon such a bill, it will give no advice and direction upon any matter in which the executor is not interested as such. In the wild now before us the whole estate of the testator is given to the widow for life, with certain limitations among the testator’s brothers and sisters. The only '¿{uestiop asked by the administrator, with the will annexed, in which he is interested, is, whether the widow can be required to give a bond as a security lor the jrcr--sonal estate which site takes for life Only ; and it is clearly settled that she cannot. See Williams on Executors, 1198. Unless a case of danger can he éhown she can only he called upon to‘sign and .deliver to the executrix an inventory of the articles, admitting their receipt: expressing that she is entitled to them for life, and that after-wards they belong to the remaindermen. The assent of the executor to the legacy lor life will vest the interest in remaindermen ; which, they must take means to* protect, should they find that it is likely to,'be endangered by the act of the tenant for life. So, any questions which may arise between the remaindermen, as to their respective* rights in the property, must be settled in a suit among themselves, as the executor will have no interest in it, and will not be allowed to meddle with it.

A decree may be- drawn in accordance with this opinion ; but the plaintiff must pay the costs, as there was no necessity for his bill.